Martinez-Hernandez v. Holder

Counsel is not ineffective where a petitioner fails to make the necessary threshold showing that his claim for cancellation, in an immigration appeal, was plausible.

Javier Martinez-Hernandez entered the United States at the age of one in 1984. When he was still a minor, in 1997, his mother applied on his behalf for an I-130 visa. That application did not progress, however, petitioner received a visa in 2004, which allowed him to stay in the U.S. for three years. He subsequently failed to apply for an adjustment of status within one year of his visa. Martinez-Hernandez committed a violent offense against a police officer when he was 18, and removal proceedings were instituted. At an initial hearing, the Immigration Judge (“IJ”) indicated that Martinez-Hernandez likely would be ineligible for cancellation of removal due to his criminal conviction. Martinez-Hernandez’s attorney then, only applied for adjustment of status. Martinez-Hernandez then argued that counsel was ineffective for failing to seek cancellation of removal. The Board of Immigration Appeals (“BIA”) countered that Martinez-Hernandez failed to meet the threshold requirement of showing that his claim for cancellation of removal was “plausible.” The BIA went on to say that without such a threshold showing, a court cannot conclude that counsel’s inadequacies “may have affected the outcome of the proceedings,” which is a requirement for that claim. Martinez-Hernandez made no showing of evidence tending to show “exceptional and extremely unusual hardship” to a qualifying relative to meet the required showing for his removal proceeding. The Ninth Circuit agreed with the BIA, and held that the BIA did not abuse its discretion by rejecting the ineffective assistance of counsel argument by denying the motion to reopen. DENIED.